CSC Braehead Leisure Ltd V Laing O'Rourke Scotland Ltd

Whilst an adjudicator could in principle issue an interim decision, if he did not issue a final decision with the required time, it was invalid but the decision in the instant case was not an interim one

19 August, 2008

CSC BRAEHEAD LEISURE LTD V LAING O’ROURKE SCOTLAND LTD

Scotland, Outer House, Court of Session
Lord Menzies
19 August 2008

The adjudicator issued his decision by e-mail four minutes before the extended deadline for him to do so. He stated in his decision that he envisaged some minor further written procedure to take account of a matter touching on overall quantum. He sought comment in his decision from the parties in relation to this discrete issue on the basis that if there was agreement, no further action would be necessary but that if there was no agreement he would consider any further submissions. The contractor on receipt of the decision stated that the adjudicator had failed to issue a proper decision with the result that the mandatory period for a decision had expired and that the adjudicator's jurisdiction had come to an end. In further correspondence the adjudicator referred to his decision as being "interim".

The contractor contended in the court proceedings issued by the employer that (i) The adjudicator had no power to make interim findings or awards and was obliged to reach his decision within the time limit as extended (ii) The adjudicator's final document was clearly only an interim award and was incompetent and (iii) The adjudicator did not determine the dispute referred to him but left material matters to be determined at a later date and thereby failed to exercise his jurisdiction. Lord Menzies rejected all the contractor's contentions with the exception that the adjudicator was obliged to reach his decision within the required time. The final document issued by the adjudicator, when considered as a whole, was intended by the adjudicator and was his decision in terms of the contractual requirements for the issuing of decisions. The adjudicator's decision in the final document he issued was the decision he was contractually required to make and, despite indications to the contrary, was not an interim decision. An adjudicator could in principle issue an interim decision. In particular there was nothing in the underlying logic of the adjudication procedure to prevent an adjudicator from issuing a partial or interim decision. However, if he did not issue a final decision with the required time, he would not have exhausted his jurisdiction and the interim decision would not have been valid.